1 Human Rights and Disability The current use and future potential of United Nations human rights instruments in the context of disability Gerard Quinn and Theresia Degener with Anna Bruce, Christine Burke, Dr. Joshua Castellino, Padraic Kenna, Dr. Ursula Kilkelly, Shivaun Quinlivan United Nations New York and Geneva, 2002
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3 NOTE Symbols of United Nations document are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. The views expressed in this publication are those of the authors and do not necessarily reflect the views of the Office of the United Nations High Commissioner on Human Rights. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the United Nations Secretariat concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Nor does the term national institution in any way imply conformity with the Principles relating to the status of national institutions (General Assembly resolution 48/134 of 20 December 1993, annex). HR/PUB/02/1 Copyright United Nations 2002 All rights reserved. The contents of this publication may be freely quoted or reproduced or stored in a retrieval system for non-commercial purposes, provided that credit is given and a copy of the publication containing the reprinted material is sent to the Office of the High Commissioner for Human Rights, Palais des Nations, CH Geneva 10, Switzerland. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form without the prior permission of the copyright owner if the purpose relates to profit-making ventures. The licensing of rights for commercial purposes is encouraged by the United Nations.
4 iv Contents Contents Note on contributors Foreword Acknowledgements Page vii ix x Executive summary 1 Part 1 Background: The shift to a human rights framework of reference Chapter 1 The moral authority for change: human rights values and the worldwide process of disability reform Human values the human being as subject and not object From values to rights: a system of freedom built on human values The core problem: the "invisibility" of people with disabilities in the system of freedom Human rights as a visibility project in the context of disability 26 Chapter 2 The application of moral authority: the shift to the human rights perspective on disability through United Nations soft law Early United Nations General Assembly resolutions on disability The emergence of the rights model in the 1980s: the World Programme of Action (1982) Influential United Nations studies and guidelines The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) World conferences and disability United Nations Commission on Human Rights resolutions and disability United Nations expert seminars on disability General Assembly resolution on a convention to promote and protect the rights and dignity of persons with disabilities Conclusions 46 Chapter 3 Building bridges from soft law to hard law : the relevance of the United Nations human rights instruments to disability The United Nations human rights treaty system Navigating the United Nations human rights treaty system 49 Part 2 Evaluation of the current use of the United Nations human rights instruments in the context of disability Chapter 4 Disability and freedom: the International Covenant on Civil and Political Rights (ICCPR) The relevance of civil and political rights to disability Enforcement and interpretation of the ICCPR in the context of disability Disability as a human rights issue in the complaints procedures under the first Optional Protocol to the ICCPR 72
5 Contents v 4.5 Conclusions on the ICCPR and disability 75 Chapter 5 Disability and social justice: the International Covenant on Economic, Social and Cultural Rights An overview of the International Covenant on Economic, Social and Cultural Rights The general application of the ICESCR in the context of persons with a disability The relevance of specific ICESCR rights in the context of disability Case studies on the current use of the ICESCR in the context of disability Conclusions on the ICESCR and disability 130 Chapter 6 The integrity of the person: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and disability An overview of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment The general relevance of Convention norms in the context of disability Case studies on the operation of the Convention in the context of disability Conclusions on CAT and disability 163 Chapter 7 Gender and disability: the Convention on the Elimination of all Forms of Discrimination against Women Introduction to CEDAW The general application of CEDAW norms in the context of disability Case studies on the current use of CEDAW in the context of disability Conclusions and future perspectives on CEDAW 188 Chapter 8 Disability and children: the Convention on the Rights of the Child (CRC) Background to the Convention The relevance of the CRC norms in the context of disability Implementation of the Convention Case studies on the current operation of the CRC in the context of children with disabilities The increasing prominence of the disability perspective in the CRC Committee Conclusions on the CRC and disability 226 Chapter 9 Disability and racial discrimination: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) Background to the Convention The Convention enforcement machinery Relevance of ICERD norms in the context of disability Case studies on State party reports with a disability dimension Conclusions on CERD and disability 240 Part 3 Options for the future: towards maximizing the potential of the United Nations human rights instruments in the context of disability Chapter 10 Civil society: current use of the United Nations human rights system and future choices Part I: Organizational details Part II: Self-understanding of disability NGOs as human rights defenders (questions 1-6) Part III: Self-evaluation of human rights capacities (questions 7-18) 249
6 vi Contents 10.4 Part IV: Current levels of DPO/INGO engagement with the United Nations human rights machinery Part IV: Outcome of engagement with the human rights treaty monitoring bodies Part VI: The future Conclusions on the NGO questionnaire 270 Chapter 11 National human rights institutions catalysts for change Level of disability awareness (questions 1-3) The status of disability rights on the agenda of national institutions (questions 4-7) The disability rights record of national institutions (questions 8-11) Litigation on disability rights Education and capacity-building (questions 15 and 16) Disability and the law reform process (questions 17 and 18) Conclusions 284 Chapter 12 Recommendations: Making the United Nations human rights machinery work better in the context of disabiity States parties towards a more sustained focus on persons with disabilities as the beneficiaries of the human rights treaties Treaty monitoring bodies towards the mainstreaming of disability The Office of the High Commissioner for Human Rights advancing disability as a human rights issue United Nations Commission for Human Rights bringing disability onto the agenda National human rights institutions enabling reform to come about Civil society disability NGOs as human rights NGOs 290 Chapter 13 Expanding the system: the debate about a disability-specific convention Growing support for a thematic convention A thematic convention as a way of enhancing the visibility of people with disabilities in the human rights system The practical benefits of a thematic convention Dignity and equality as the key to the content of a thematic convention The new freedom agenda and disability: the interdependence of all human rights A thematic convention as an aid to the mainstreaming of disability in United Nations human rights instruments The mutually reinforcing roles of a thematic convention and the United Nations Standard Rules 297
7 vii Contributors Theresia Degener is a German lawyer and Law Professor specializing in disability law. She holds an LL.M. from the University of California (Berkeley) and has published extensively on disability law. She is a Professor of Law at the University of Applied Sciences, Rheinland-Westfalen-Lippe, Bochum, Germany. She has taught disability law at the University of California (Berkeley). She has a disability. Gerard Quinn is an Irish barrister and Law Professor specializing in disability law. He holds an LL.M. and S.J.D. from Harvard Law School. He is the academic coordinator of a European Commission network of disability lawyers. He is also a member of the Human Rights Commission of Ireland and of the European Committee on Social Rights (Council of Europe). He is a Professor of Law at the National University of Ireland (NUI), Galway. He is convenor of a Disability Law and Policy Research Unit at the NUI, Galway School of Law. He has a daughter with a disability. Anna Bruce holds an LL.M. from the University of Lund (Sweden) as well as a Master s Degree in International Human Rights Law (LL.M) from the University of Lund Raoul Wallenberg Institute. Her area of expertise within human rights is equality and non-discrimination. She worked on the project while engaged as a researcher at the Disability Law and Policy Research Unit, NUI, Galway. Padraic Kenna is a graduate of the University of Warwick (UK) and is a specialist in economic, social and cultural rights. He was engaged on the project as a researcher at the Disability Law and Policy Research Unit, NUI, Galway. His main area of research is international housing law as well as disability. Dr. Ursula Kilkelly is a graduate of Queen s University, Belfast. She is a lecturer in law at University College Cork. She has published research in international, British and Irish journals on the monitoring work of the Committee on the Rights of the Child and also on the rights of children under the European Convention on Human Rights. She has recently become strongly engaged on the issue of the rights of children with disabilities. Joshua Castellino currently lectures at the Irish Centre for Human Rights, Faculty of Law, NUI, Galway. He completed his Ph.D. in international law at the University of Hull (UK) in He is currently engaged in research in the area of minority rights law and in teaching for the LL.M in International Human Rights Law. Shivaun Quinlivan holds a B.A. and LL.B. from NUI-Galway, and an LL.M. from King's College London. She is a barrister at law. She works as a law lecturer at NUI, Galway and is a member of the Disability Law Policy and Research Unit.
9 ix Foreword It has been one of my goals as High Commissioner to have more attention given to the human rights of persons with disabilities, and to have the United Nations system respond more effectively in this area. I am very pleased, therefore, that this study on human rights and disability was based on an initiative of the Commission on Human Rights. In 2000 the Commission requested me as High Commissioner to examine what might be done to strengthen both the protection and the monitoring of the human rights of persons with disability. As a first step it was decided to commission a study on the human rights dimensions of disability. The study would, it was hoped, clarify the conceptual and policy issues as well as report on both the experience and the potential of the international treaty bodies in monitoring and advancing protection. This comprehensive and well researched study of human rights and disability is the result. I warmly welcome the study and commend it to all concerned with human rights and disability. On behalf of the Office of the High Commissioner for Human Rights I thank the authors and researchers who have worked together to provide us with an indispensable and practical resource for the use of international and national human rights mechanisms to defend the human rights of those with disabilities. At the same time, the book will be an essential foundation for the further initiatives on protection being considered by the General Assembly of the United Nations. I wish to acknowledge the support of the Government of Ireland, which made the project possible. Mary Robinson High Commissioner for Human Rights
10 x Acknowledgements We would like to acknowledge the considerable assistance and moral encouragement received from the following; Dr. Christine Whyte, Policy Officer, National Disability Authority of Ireland; the staff of the Office of the United Nations High Commissioner for Human Rights, Geneva; Mr. Don Wills, President, International Disability Alliance (IDA); Mr. Stephan Tromel, Director, European Disability Forum; Mr. Bengt Lindqvist, United Nations Special Rapporteur on the Standard Rules for the Equalization of Opportunities for Persons with Disabilities; Mr. Miguel-Angel Cabra de Luna (ONCE Foundation, Madrid); Mr. Eric Rosenthal (Mental Disability Rights International); Dr. Arthur O Reilly, former Director, National Disability Authority of Ireland; Dr. Kate Quinn, Department of Spanish, NUI, Galway; Mrs. Agnes O Farrell, Disability Liaison Officer, NUI, Galway; Sabine Decker, Gabriel Hille, Barbara Duncan and Annegret Deyle (Bochum, Germany).
11 Executive summary The present study is about the current use and future potential of the United Nations human rights instruments in the specific field of disability. Over 600 million people, or approximately 10 per cent of the world s population, have a disability of one form or another. Over two thirds of them live in developing countries. Only 2 per cent of disabled children in the developing world receive any education or rehabilitation. The link between disability and poverty and social exclusion is direct and strong throughout the world. A dramatic shift in perspective has taken place over the past two decades from an approach motivated by charity towards the disabled to one based on rights. In essence, the human rights perspective on disability means viewing people with disabilities as subjects and not as objects. It entails moving away from viewing people with disabilities as problems towards viewing them as holders of rights. Importantly, it means locating problems outside the disabled person and addressing the manner in which various economic and social processes accommodate the difference of disability - or not, as the case may be. The debate about the rights of the disabled is therefore connected to a larger debate about the place of difference in society. The disability rights debate is not so much about the enjoyment of specific rights as it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by people with disabilities. The non-discrimination principle helps make human rights in general relevant in the specific context of disability, just as it does in the contexts of age, sex and children. Non-discrimination, and the equal effective enjoyment of all human rights by people with disabilities, are therefore the dominant theme of the long-overdue reform in the way disability and the disabled are viewed throughout the world. The process of ensuring that people with disabilities enjoy their human rights is slow and uneven. But it is taking place, in all economic and social systems. It is inspired by the values that underpin human rights: the inestimable dignity of each and every human being, the concept of autonomy or self-determination that demands that the person be placed at the centre of all decisions affecting him/her, the inherent equality of all regardless of difference, and the ethic of solidarity that requires society to sustain the freedom of the person with appropriate social supports. The shift to the human rights perspective has been authoritatively endorsed at the level of the United Nations over the past two decades. This is best exemplified by the United Nations Standard Rules on the Equalization of Opportunities for People with Disabilities, adopted by the General Assembly in resolution 48/96 of 20 December The Rules are monitored by a United Nations Special Rapporteur, Bengt Lindqvist, who has received his mandate from the United Nations Commission for Social Development. The Rules, and especially the role played by the Special Rapporteur, continue to make a vital contribution to the process of raising consciousness about the human rights of persons with disabilities and in stimulating positive change throughout the world.
12 2 Executive summary The United Nations human rights treaty bodies have considerable potential in this field but have generally been underused in advancing the rights of persons with disabilities. The study focuses on the bodies monitoring six main United Nations human rights treaties: the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Elimination of All Forms of Racial Discrimination. The main thesis of the study is that the process of disability reform that is taking place across the globe could be immeasurably strengthened and accelerated if greater and more targeted use were made of these instruments. It has to be emphasized that the primary responsibility for ensuring respect for the human rights of persons with disabilities rests with States. That is, the use and value of the United Nations human rights machinery is vindicated by meaningful domestic reform. The human rights instruments provide not merely guidance, but place obligations on States parties to reform. States parties are demonstrably moving in the direction of the human rights perspective on disability. Recent research shows that 39 States in all parts of the world have adopted non-discrimination or equal opportunity legislation in the context of disability. States parties dialogue with the human rights treaty bodies is constructive in the context of their efforts to secure disability reform; a significant amount of good practice now exists on a worldwide basis which can be usefully propagated through the human rights treaty system. The shift to the human rights perspective is also reflected in the fact that national institutions for the promotion and protection of human rights throughout the world have begun to take an active interest in disability issues. This is important since these institutions help in providing a bridge between international human rights law and domestic debates about disability law and policy reform. National institutions are strategic partners in the process of change, and their increasing engagement on the issue of human rights for persons with disabilities is a highly encouraging sign for the future. People with disabilities themselves are now framing their long-felt sense of grievance and injustice into the language of rights. Isolated injustices need no longer be experienced in isolation. NGOs working with disability issues such as the collaborative project Disability Awareness in Action are beginning to see themselves also as human rights NGOs. They are beginning to collect and process hard information on alleged violations of the human rights of persons with disabilities. While still relatively limited, their human rights capacities are growing. A similar process of self-transformation is under way within traditional human rights NGOs, which are increasingly approaching disability as a mainstream human rights issue. This is important, since these NGOs have highly developed structures, and the development of a healthy synergy between disability NGOs and traditional human rights NGOs is not only long overdue, but inevitable. All in all, the time is right for a stock-taking of the current use and future potential of the United Nations human rights instruments in the context of disability.
13 Executive summary 3 Aims of the study The study has three main aims. The first aim is clarify the relevance of the six United Nations human rights treaties to disability. In order to do this, the study will identify the various obligations of States parties under the treaties and explain how the relevant enforcement mechanisms work in the context of disability. We hope that it will constitute a useful reference work for all stakeholders, including the States parties, the treaty monitoring bodies, the Office of the High Commissioner for Human Rights, national human rights institutions and civil society. It does not purport to be exhaustive. It creates added value for the existing literature by demonstrating the relevance of the human rights protections provided for under the six treaties to disability. More refined analysis will be needed as the debate moves on. The second aim of the study is to review how the system actually works in practice with respect to disability, by looking at how States parties report to the treaty monitoring bodies on human rights and disability and how the treaty monitoring bodies respond. A total of approximately 147 recent periodic State party reports were examined. They were selected on the basis of the availability of documentation and to ensure a reasonable geographic spread. No criticism of any State party is intended. The object of this analysis was simply to derive some sense of how States parties saw themselves as discharging their obligations in the specific context of disability. Indeed, no criticism is intended of the treaty monitoring bodies. Their attention and scarce resources are drawn in many different directions, and the fact that they have developed a sense of the relevance of the various human rights treaties in the context of disability attests to their understanding that disability is a human rights issue. While our analysis with respect to the evaluative component of the study does not purport to be scientific, it nevertheless provides a sufficient basis for general conclusions to be drawn - conclusions that we hope will help to mainstream disability issues in a more sustained and focused manner. The third aim of the study - the main one - is to provide options for the future. As such, it provides observations, comments and recommendations as to how the various stakeholders might enhance the use of the six human rights instruments in the context of disability. The study aims at strengthening the system, while arguing for the adoption of a thematic convention on the rights of persons with disabilities. For a variety of reasons, the authors conclude that such a convention is necessary and would underpin - and not undermine - the existing instruments in the field of disability. Outline of the study The study is divided into three parts. Part 1 examines the nature of the shift to the human rights framework of reference in the context of disability. It is composed of three chapters. Chapter 1 explains the relevance of human rights values and doctrine to disability. It asserts that the core problem in the field of disability is the relative invisibility of persons with disabilities, both in society and under the existing international human rights instruments. It concludes that the main human rights challenge is
14 4 Executive summary accommodating the difference of disability and making people with disabilities visible within the treaty system. Chapter 2 recounts briefly how the shift of perspective was given authoritative expression in a wide variety of instruments adopted in the context of the United Nations system over the past two decades. It sets the stage for an examination of how the United Nations human rights treaty system is currently accommodating the rights of persons with disabilities. Chapter 3 presents the United Nations human rights treaty system and provides the bridge between so-called soft law and hard law. One important operating principle of the study is that it is necessary to cross over this bridge and to make full use of the human rights treaties in the context of disability. Part 2 of the study is an evaluation of the current use of the United Nations human rights instruments, providing a detailed analysis of the actual and potential relevance of each of the six human rights treaties in the context of disability. This part is composed of six chapters corresponding to the six treaties. The analysis contained in Part 2 is intended to be part expository and part evaluative. The expository dimension involves making the contents of the treaties transparently relevant in the context of disability. Each of the rights protected is examined and its relevance elucidated. The evaluative part is made up of a series of case studies on how the provisions of the respective treaties are applied in general in the context of disability. Chapter 4 deals with freedom and disability under the ICCPR. This treaty is looked at first because the key ethic of the worldwide disability rights movement is freedom and participation. In other words, what people with disabilities aspire to most is to have access to the same rights - and civic responsibilities - as all other persons. Consistent respect for the ICCPR rights of the disabled would not merely protect people with disabilities against abuses, but would also be a huge help in breaking down barriers to the mainstream. In the sample of States parties reports surveyed, many States continue to report on disability as a welfare issue and not as a rights issue under the ICCPR. The authors found approximately nine individual complaints addressing disability issues submitted to the Human Rights Committee under the first Optional Protocol to the Covenant. Most were found to be inadmissible. At least one complaint has led to very positive case law on the treatment of prisoners with disabilities. In essence, the Committee held that it is the duty of States parties to accommodate prisoners with special needs. This shows an awareness on the part of the Committee that it is not enough to treat all persons the same, but that added allowance (or reasonable accommodation ) may be necessary to make rights real for people with disabilities. This positive normative development offers great promise for persons with disabilities. Chapter 5 deals with the ethic of social justice and disability in the context of disability. Disability is one of the best areas in which to assert and prove the indivisibility and interdependence of civil, political, economic, social and cultural rights. Using formal law to break down barriers to the mainstream is necessary but not sufficient. People with disabilities must be afforded freedom, but also the means to take advantage of it. This can be done by providing relevant social supports and, in
15 Executive summary 5 particular, by respecting economic, social and cultural rights. The authors decided to place this chapter after the one on the ICCPR in view of the standing danger that ICESCR rights will be viewed as being of primary importance in the context of disability since they are so obviously connected with social support. In the admirable General Comment No. 5 on persons with disabilities adopted by the Committee on Economic, Social and Cultural Rights in 1994, the Committee views the rights in the Covenant as providing the indispensable means of empowering people with disabilities in their own lives and providing ongoing support for a life of active participation in society. The right to health (art. 12), for example, is interpreted by the Committee as having a direct link to participation in society. In the sample of States parties reports surveyed, States parties tend not to draw the link between ICESCR rights and the achievement of the goals of independence, autonomy and participation. Notwithstanding this, General Comment No. 5 remains a landmark and the Covenant in general has a hugely important role to play in sensitizing all stakeholders to how appropriate social supports and rights can best be used to break down barriers and enable people with disabilities to participate in all spheres of life. Chapter 6 deals with the important question of protecting people with disabilities against torture and cruel, inhuman or degrading treatment under the Convention against Torture. This is especially relevant to the many millions of people with disabilities who live in institutions or in other types of residential care. Disability reinforces the imbalance of power in many such institutions and heightens the vulnerability of people with disabilities to abuse. Disability issues tend not to figure prominently in the sample of periodic reports surveyed. One individual complaint concerning the situation of disabled prisoners that was submitted to the Committee against Torture (CAT) was ruled inadmissible on the grounds that domestic remedies had not been exhausted. Chapter 7 deals with the Convention on the Elimination of All Forms of Discrimination against Women insofar as it is relevant to women with disabilities. General Comment No. 5 refers to a tendency to think of people with disabilities as genderless. The Committee on the Elimination of Discrimination against Women (CEDAW) has itself adopted General Recommendation No. 18 on women with disabilities which requests States parties to include information on women with disabilities in their periodic reports with respect to their exercise of several rights contained in the Convention. In the sample of periodic reports surveyed there was little consistent reporting on the double discrimination experienced by women with disabilities. Chapter 8 deals with the Convention on the Rights of the Child insofar as it is relevant to children with disabilities. The Convention is unique among the human rights treaties in that it contains a specific article on disabled children (art. 23). This article is, of course, without prejudice to the general applicability of all of the Convention s provisions to children with disabilities. The Committee on the Rights of the Child (CRC) has an impressively high level of awareness of disability issues. In 1997, it held an important day of general discussion on disabled children which has had a very positive impact on how the Committee addresses the situation pertaining to children with disabilities. The Committee seems to be well on the way to developing a coherent perspective on children with disabilities.